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Law at Work April 2017 - Hot Topics

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 applying to large private sector employers came into force on 6 April 2017. (You can read our previous article giving details of the Regulations here.) Acas and the Government Equalities Office jointly published draft non-statutory guidance on the Regulations in January, but have now issued the final guidance, Managing gender pay reporting. The guidance gives further information for both private and public sector employers (who are covered by similar rules, which took effect on 31 March 2017).

The guidance confirms that:

Partners and LLP members, where they would usually also be considered employees, should be included when establishing whether the employer has reached the threshold of 250 or more employees in the UK, but partners and LLP members should not then be used as part of the subsequent calculations. Partnerships and LLPs will not have to include the earnings of their partners or members in their reports.

In a group structure, each company which reaches the threshold must report separately on its gender pay gap and gender bonus pay gaps. Groups are free to publish group-wide statistics as well if they wish. Some companies may, in addition to the legally-required information, also choose to break down their figures by sector or business group if this is considered to be informative and appropriate.

Some supposedly ‘self-employed’ individuals will meet the definition of employment under the Equality Act, and those must be included in the headcount and calculations where the employer has the information necessary to do so.

Where an employee works for a non-UK entity, but is seconded to work for a UK organisation, the UK entity will have to decide whether that person is its employee or not. Where a payment was not made in pounds sterling, the exchange rate used should be that at the date of payment.

If an employer contributes to a pension by way of a salary sacrifice scheme, the employee’s gross salary after the reduction should be used.

The guidance also provides further clarification of what is meant by ordinary pay, and when bonuses should or should not be included in the calculations.

Survey shows one in five employers have turned down a candidate because of social media

A survey by YouGov of over 2000 “business decision makers” in the UK found that 19% had turned down candidates for a job because of their online activity, (rising to 28% for those respondees from larger organisations). Larger organisations are also the most likely to check social media accounts during the hiring process (20%, compared to 27% at medium sized organisations and 40% of small employers). Generally, employers are most likely to look at potential employees’ LinkedIn, Facebook and Twitter accounts. The biggest obstacles to employment, if found, are likely to be aggressive or offensive language (which 75% of respondees said would put them off), references to drug use – and bad spelling and grammar. The full results are available here.

HMRC changes guidance on EMI option agreements

New HMRC guidance requires that Enterprise Management Incentive (EMI) option agreements issued on or after 17 August 2016 must include details of any restrictions over shares. If your company grants tax-favoured EMI options to employees, you can read more from Taylor Wessing’s employee incentives team about how this affects you and what changes must be made here.

HR data – challenges ahead for UK and EU employers

In Global Data Hub, Taylor Wessing is looking at key issues in HR data for employers. The new General Data Protection Regulation will apply from 25 May 2018. Bringing enhanced rights for individuals and an increased compliance burden for most employers, businesses need to get ready for compliance. At the same time, concerns around data exports and Brexit will create new challenges, particularly for UK businesses. Planning ahead is essential and this month, articles include lawful processing of HR data, employee monitoring, subject assess requests and cross-border transfers.

Government consults on caste discrimination

The Government Equalities Office has issued a public consultation asking for views on how to ensure there is appropriate and proportionate protection against discrimination because of caste. At present, caste is not a protected characteristic in its own right, although case law has held that it may be a form of race discrimination. The consultation also requests suggestions as to how this protection would be implemented in practice, and closes on 18 July 2017.

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